Marsh v. Rogers

ANDERSON, C. J. [1] The instrument in question (which will bo set out by'the reporter) is in form a deed, has every earmark of one, and is unquestionably a deed, and not a testamentary document. There is no effort to postpone the operation of same until the death of the grantor, and the interest conveyed is not posthumous. Graves v. Wheeler, 180 Ala. 412, 61 South. 341; Mays v. Burle *108 son, 180 Ala. 396, 61 South. 75; Elmore v. Mustin, 28 Ala. 309; Sharp v. Hall, 86 Ala. 110, 5 South. 497, 11 Am. St. Rep. 28; Phillips v. Phillips, 186 Ala. 545, 65 South. 49, Ann. Cas. 1916D; 994. The reservation by the grantor of the use and control of the land during her life did not postpone the operation of the deed until her death. Graves v. Wheeler, supra. On the other hand, the reservation of the use and control of the land during her life negatives an intention, on. her part to make it a testamentary document. If she meant it as a will, it could not become operative until her death, and the reservation of the use and control of the land during her life was needless, and the only necessity for such a reservation would be upon the idea and theory that it was a deed and could not be revoked by her. Mays v. Burleson, supra. [2-4] The intention of the maker is the controlling inquiry, and that intention is to be gathered, primarily, from the language of the instrument itself; but this does not, in case of inapt phraseology, preclude proof of instructions given to the draughtsman, in reference to the nature of the-paper he was expected to prepare. The instrument in question, however, is not in inapt phraseology or of doubtful meaning, and needed no extraneous proof to establish the intention of the grantor; but if the evidence as to the grantor’s directions and instructions, as well as the surroundings and attendant circumstances, was admissible, it does not show that she intended to make a will instead of a deed. We are also aware of the rule that in doubtful cases, if a paper can have no operation as a deed, but may as a will, it should be pronounced a will; but this ruling can have no application here, as this cannot be regarded as a doubtful case. There 'are certain expressions in some of our earlier cases, which are cited in brief of appellee’s counsel, not in thorough harmony with our more recent cases; but these earlier cases have been dealt with specifically or generally in the case of Phillips v. Phillips, supra. [5] It is suggested in brief of appellee’s counsel that, as this appeal is from the equity side of the circuit court and is certified to this- court by the register, instead of the clerk, and as the statute (section 2835 of the Code of 1907) authorized an appeal from the probate court to the circuit court, not the chancery or circuit court in equity, this court should dismiss this appeal ex mero motu. The chancery court was merged into the circuit court by the act of 1915 (Acts 1915, p. 598), and, while there was no effort to abolish the line of demarcation between equity and law eases, the two became but one court, and this appeal was of course properly taken to the circuit court, though the case should have more properly been placed on the law instead of the equity side of the docket. This, however, was a mere matter of form, in this particular case, as the judge was judge both of the law and equity side and acted purely in an appellate capacity, reviewing the case upon the bill of exceptions taken in the probate court, and which is practically the same record that is presented to this court- Whether or not the case was one of equitable cognizance, or should have been considered a law case, did not go to the general powers of the circuit court to hear and determine same, but merely as to the capacity in which such court did so; and if this appellee, without objection or exception, permitted a consideration of same in the equity instead of the law side, we do not think that this court should of its own motion dismiss this appeal as for want of jurisdiction of. the trial court to render the judgment or decree from which this appeal is taken. The circuit court erred in not reversing the decree of the probate court declaring the instrument a will, and its judgment is reversed, and one is here rendered vacating the decree of the probate court in admitting the same probated as a will. Reversed and rendered. McOLELLAN, THOMAS, and BROWN, JJ., concur.